Lang

I

Introduction

Code of Civil Procedure section 473, subdivision (b) provides mandatory relief from default or dismissal on the basis of an attorney’s affidavit of fault “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Italics added.) The issue in this appeal is whether section 473, subdivision (b) relief applies when the attorney and the client are both responsible for discovery misconduct that results in a default judgment or dismissal of the action. We find that section 473, subdivision (b) relief is available only when the attorney is solely responsible for the misconduct.

In this business dispute, the trial court imposed terminating sanctions and entered a $22 million default judgment after defendants failed to comply with three discovery orders. Alan Hochman, Edward Moiselle and Moiselle, Dorsey & Hochman Advertising Agency (collectively referred to as MDH) appeal from the entry of the default judgment, and the trial court’s denial of the section 473 motion for relief.

In the published portion of this opinion, we find that the trial court did not abuse its discretion in…